The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-06-28

Decision Of the Court, on motion for ,e-hedring,
by JUDD, c. j.
While re-affirming the views of the
Court as expressed in Kenway VS..
Motley, Hawn 100, in regard to the
right of parties to have case re-
heard, we have deemed it proper to
make few observations in regard to
this case. The rule of law, as we
understand it is, that the taking of
notes for rent does not necessarily
extinguish the claim or bar the
remedy by distress, yet where the
circumstances show that it was in
tended by the parties that the note
should be taken as absolute payment
of the rent, then the landlords only
remedy is upon the note.
Without discussing this question
further, we think modification of the
decree ordering that McGrew be paid
his back rent from the MORTGAGE
Hop Sing would avail him nothing.
For the payment of rent by the mort
gage would be for the purpose of
keeping the security on the lease
alive, and he would be authorized to
charge it to the mortgage-debt and
recover it of the assignee of the mort
gagor from the proceeds of the sale
on the foreclosure. To avoid circUity
of action, all the parties being before
the Court, no rent therefore should be
allowed McGrew, for the Court will
not order Hop Sing to pay it merely
to have McGrew pay it back to him.
Mr.. Hatch, for DR.. McGrew, further
says: upon the point whether or
not the waiver Of the right to have
demand made for rent as contained
in plaintiff S lease, affects the question
Of forfeiture Defendant asks to be
heard on this point for the reason
that the same has not been decided
by the Court, though presented and
relied upon by counsel"
From the view taken by the Court
Of the document called a surrender"
dated the 18th July, 1856, it was un
necessary to decide whether a demand
for rent was essential to complete the
forfeiture. We have considered the
document as effecting not a forfeiture,
but as being purchase Of the equity
Of redemption We call attention to
the fact that the answer does not set
up title by forfeiture, but merely
alleges that defendant is rightfully in
possession as against the plaintiff.
The defendants counsel urge fur
ther: "The crop put in by McGrew
after taking possession in July, was
harvested in December, 1856. The
decree gives this to plaintiffs. IF de
fendant McGrew is disallowed rent
after he took possession, on the theory
that he has had the use and enjoyment
of his land, how can the crop, the
fruit Of that possession, be. given to
plaintiffs If, on the other hand,
plaintiffs are to be allowed the crop,
as if they made the advances and cul-
tivated it, why should they not be
held to pay rent? If the crop goes to
plaintiffs the reference to the Master
should cover the expenses of cultiva-
ton"
We would remark that the plaintiff
(mortgagee) does not get the crop by
virtue of making the advances, but he
is to be allowed so much of it as will
discharge his mortgage which created
a lien upon the crop.
The defendant lIcGrew being in
possession under the lease and not as
landlord under a forfeiture, cultivated
the land for the mutual benefit Of the
mortgage and mortgagor in order to
enhance the value Of the mortgage
security. Certainly if the crop was
not kept in good condition the value
of the security and its ability to dis
charge the mortgage would diminish,
and it was for the interest of the
mortgagor that this should not take
place, for if the crop did not pay the
mortgage-debt, the mortgagor would
have to make it good.
Upon a review Of the whole case we
see no reason to modify the decree.
Honolulu, June %, 1887.